Tuesday, February 3, 2009

Not Privileged

A case decided today by the North Carolina Court of Appeals considers attorney-client privilege in the following context: The lawyer represented the client in a criminal matter leading to a guilty plea. The client had buyer's remorse and sought to withdraw the plea. The lawyer withdrew from the case, new counsel entered an appearence, and a hearing was held on the motion to withdraw the plea. The first lawyer testified at that hearing.

The court sustained the trial court's denial of the motion, concluding that the testimony did not relate privileged information:

The trial court's finding establishes that defendant disclosed the information to Hayes on 15 November 2004 so that Hayes could then provide it to the prosecutor in an attempt to negotiate a plea arrangement. As our Supreme Court pointed out in Miller, 357 N.C. at 335, 584 S.E.2d at 786, "if it appears that a communication was not regarded as confidential or that the communication was made for the purpose of being conveyed by the attorney to others, the communication is not privileged." Thus, because defendant provided the 15 November 2004 information to Hayes precisely for the purpose of conveying it to the prosecutor, that conversation was not a "confidential" communication to which the attorney-client privilege attached. See State v. McIntosh, 336 N.C. 517, 524, 444 S.E.2d438, 442 (1994) (holding that attorney-client privilege did not apply to attorney's statements to police as defendant had "necessarily authorized" counsel to "inform" police that defendant wanted to surrender).
    Turning to the admission of Hayes' testimony about his 30 January 2004 conversation with defendant, even assuming _ without deciding _ that the conversation was privileged and that defendant did not waive the privilege, defendant has failed to demonstrate that he was prejudiced by the disclosure. N.C. Gen. Stat. ยง 15A- 1443(a) (2007) provides that "[a] defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." In this appeal, therefore, defendant must demonstrate that if Hayes' testimony regarding the 30 January 2004 conversation had not been admitted, there is a reasonable possibility that the trial court would have granted defendant's motion to withdraw his guilty plea. We hold that defendant cannot make the necessary showing.
    The testimony regarding the 30 January 2004 conversation related to the strength of the State's proffer of evidence regarding defendant's guilt. Apart from that conversation, the trial court had before it the 24 November 2004 letter detailing defendant's proposed testimony, which establishes defendant's guilt of murder and burglary, testimony regarding the confessions of co- defendants substantially implicating defendant, and evidence of defendant's cell phone being present at the crime scene under a broken window. In light of this evidence, we conclude that there is no reasonable possibility that the trial court would have granted defendant's motion in the absence of the testimony of the 30 January 2004 attorney-client conference.

(Mike Frisch)


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